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First, plaintiff alleges that defendants retaliated against him for filing lawsuits and administrative appeals by sentencing him to a term in the Security Housing Unit at Pelican Bay State Prison (“PBSP”).
Second, plaintiff alleges that defendants violated his right to due process when they validated him (confirmed designation) as an associate gang member and sentenced him to the SHU term.
Due process does not require that plaintiff be given notice regarding which inmates are gang members. Accordingly, plaintiff is not entitled to summary judgment as to this particular claim. While plaintiff claims that he did not know that the other inmates were EME members, the undersigned cannot find that defendants improperly relied on the “card” evidence in validating plaintiff as a gang associate. Plaintiff and three other known EME members signed a birthday card addressed to another EME member. Based on the other evidence of plaintiff’s gang affiliation, plaintiff’s signature on the birthday card had sufficient indicia of reliability of his gang association.
On July 14, 2007, a cell search was conducted by defendant Villasenor of the cell of a known and validated associate of the Mexican Mafia (“EME”), Victor Salazar, during which a birthday card to Salazar was found that had been signed by plaintiff. The card was signed by three other validated EME gang members. Defendant Villasenor determined that this card should be considered as one source document for purposes of gang validation of plaintiff.
On June 28, 2007, a search of plaintiff’s cell and personal property by defendant Villasenor discovered a white piece of paper with the name “John Arce” and CDCR number “C20746″ written in blue ink. John Arce was identified as a validated EME associate housed in PBSP. Defendant Villasenor determined that this paper should be considered as another source document for purposes of gang validation of plaintiff.
On July 14, 2007, a search of plaintiff’s cell and personal property by defendant Villasenor discovered a piece of paper stating “NS Colton” and “Loonie” written on it. “Loonie” is plaintiff’s nickname and “NS Colton” is short for “North Side Colton,” plaintiff’s former street gang. Written on both sides of the name Loonie was a Mactactlomei symbol, which is the ancient Meso-American numeral thirteen. This symbol consists of two parallel lines with three unconnected dots above. According to defendant Villasenor, the thirteenth letter of the alphabet is the letter “M” which is used by the EME attempting to conceal their association. The symbol was also found written on the inside of plaintiff’s address book under plaintiff’s name. Accordingly to defendant Villasenor, the CDCR recognizes this symbol as consistent with EME prison gang association. Defendant Villasenor determined that these documents containing this symbol should be considered as source documentation for purposes of gang validation of plaintiff.
During the July 14, 2007 cell search, defendant Villasenor also discovered the name of a known and validated EME member in plaintiff’s address book (Ted Rios). Defendant Villasenor determined that this document should be considered as source documentation for purposes of gang validation of plaintiff.
On October 19, 2007, plaintiff was placed in administrative segregation (“ad seg”) based on a confidential memo dated December 19, 2006, identifying him as a gang member, and based upon the above-referenced source documents. On October 19, 2007, plaintiff was interviewed and provided with a validation interview notification and disclosure form.
The Second Level Decision denying plaintiff’s appeal challenging the gang associate validation describes the December 19, 2006, confidential memo as stating as follows: Confidential memorandum dated December 19, 2006, authored by C/O Wallace. Specifically, several EME mini-notes were discovered pertaining to EME prison gang activities. The notes identified several validated and non validated EME associates. The notes indicate that TREGLIA volunteered to participate in EME prison gang activities. Specifically, Treglia writes that he is going to be transferred to Corcoran and he would be willing to transport any EME written material or drugs to “Old Man N,” identified as CABRAL, Robert (P-97292) aka “Nego” from NS Colton, a validated EME member. Both Treglia and Cabral are from the same geographical gang neighborhood as well as the same prison gang association.
In the amended complaint, plaintiff argues that the decision to validate him as a gang associate violated his right to due process because it was not supported by sufficient evidence. In the amended complaint, plaintiff appears to challenge all of the factors relied on by defendants to validate him as a gang associate. However, in his summary judgment motion plaintiff specifically challenges only two of the factors relied on by defendants to validate him as a gang associate: his name on the birthday card and the gang symbol written on paper found in his cell.
Plaintiff first argues that the fact that he signed the birthday card was not evidence of his gang affiliation because he did not know that the other inmates who signed the birthday card were EME members or associates. Plaintiff also argues that defendants violated his right to due process by failing to give him notice that these inmates were EME members or associates. In support of these arguments, plaintiff contends that the sign on the cell door shared by two of the inmates who signed the card identified them as “S/H,” i.e. Southern Hispanics, rather than “H/EME,” i.e. Mexican Mafia gang members. Plaintiff’s declaration attached to his summary judgment motion as exhibit 2 states that he did not know that these inmates were EME members because their door tag read “S/H.”
Plaintiff next argues that defendants did not give him proper notice that they considered the Meso-American symbol to be gang related. Plaintiff contends that he did not know that this symbol signified association with the EME. Plaintiff contends that he has had this symbol tattooed on the back of his neck since he was twelve years old. He argues that this symbol is used by Hispanic street gangs from southern California to identify themselves as southerners. Plaintiff argues that this symbol is a “fad” that can be found on sweaters, clothing and other items. Plaintiff also argues that the regulation relied on by defendants to find that the symbol was evidence of gang affiliation was unconstitutionally vague.
Due process did not require that plaintiff be given notice that the symbol signified association with the EME. Accordingly, plaintiff is not entitled to summary judgment as to this particular claim.
In their opposition, defendants do not specifically address plaintiff’s claim that he did not know the Meso-American symbol for thirteen signified gang membership. The fact that plaintiff has had this symbol tattooed on his neck allegedly since he was twelve years old would support his claim that he believed the symbol signified that he was southern. However, the other evidence of plaintiff’s gang involvement created sufficient indicia of reliability for this evidence. As discussed above, a single piece of evidence may be sufficient to meet the “some evidence” requirement if that evidence has “sufficient indicia of reliability.” In the pending motion, plaintiff does not challenge the other evidence relied on by defendants to validate his gang association. For that reason, were the undersigned to find the two factors challenged in the pending motion were not supported by some evidence, plaintiff’s gang validation would still stand based on the unchallenged factors.
For the reasons discussed above, the undersigned recommends that plaintiff’s motion for partial summary judgment be denied.
Treglia v. Director of California Department of Corrections et al, No. 2:2009cv00352 – Document 58 (E.D. Cal. 2010). Order and Findings and Recommendations signed by Magistrate Judge Kendall J. Newman on 11/24/10.
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